IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 2636/2021
In the matter between:
SAMWU obo TSHEPO MASHWENI Applicant
and
SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING
COUNCIL First Respondent
COMMISSIONER JOSEPH MPHAPHULI N.O. Second Respondent
LEPELLE LOCAL MUNICIPALITY Third Respondent
Heard: 5 February 2025
Delivered: This judgment was handed down electronically by circulation to
the parties' legal representatives by email and publication on SAFLII and the
Labour Court’s website. The date and time for hand -down is deemed to be on
27 August 2025
JUDGMENT
TLHOTLHALEMAJE, J
2
Introduction:
[1] There are two applications before the Cour t. In the first, the applicant seeks
an order condoning the late filing of the review application. In the second application,
and to the first application is successful , the applicant seeks an order reviewing and
setting aside a ruling issued by the second respondent (Arbitrator) . In the impugned
ruling, the Arbitrator had dismissed the applicant’s application for condonation for the
late filing of his referral before the first respondent (SALGBC). T he third respondent
(Municipality) has opposed both applications.
Background:
[2] The applicant was employed by the Municipality in its fleet department. He
was dismissed on 15 March 2021 on account of three allegations of misconduct. He
had referred an alleged unfair dismissal dispute to the SALGBC . The referral was
filed outside the s tatutory time period as contemplated in section 191(1)(b) of the
Labour Relations Act1 (LRA).
[3] In the referral before the SALGBC dated 7 June 2021, the applicant had
stated that the dispute arose on 14 May 2021. That referral was not accompanied by
an application for condonation and the matter was set down before the Arbitrator on
30 August 2921. At those proceedings, the Municipality disputed the jurisdiction of
the SALGBC to determine the dispute in the absence of an application for
condonation in the light of the late referral. The Arbitrator upheld the objection in a
ruling issued on 06 September 2021.
[4] The applicant subsequently filed an application for condonation on 3
September 2021. This was prior to the Arbitrator having issued his ruling on
jurisdiction. From the second ruling issued by the Arbitrator on 12 September 2021,
it was recorded that the application for condonation was unopposed, and it was
considered on the papers on 9 September 2021 and granted. The Municipality had
1 Act 66 of 1995, as amended.
3
promptly sought a rescission of the Arbitrator’s ruling. The Arbitrator had considered
the matter and agreed that the Municipality’s opposing papers had not come to his
attention at the time that he granted condonation.
[5] The Arbitrator having rescinded his ruling on 20 September 2021
subsequently reconsidered the condonation application as now opposed and on the
papers. He dismissed the application for condonation in a ruling issued on 20
September 2021.
The review application and condonation:
[6] The application to review and set aside the condonation ruling issued by the
Arbitrator was delivered on 8 December 2021. The applicant also filed an application
for condonation for the late filing of the review application on the same date.
The legal approach and evaluation:
[7] Under the provisions of section 145(1)(a) of the LRA, any party to a dispute
who alleges a defect in any arbitration proceedings under the auspices of the CCMA
or Bargaining Council may apply to the Labour Court for an order setting aside the
arbitration award within six weeks of the date that the award was served on the
applicant. Under section 145(1A) of the LRA, this Court may on good cause shown,
condone the late filing of a review application.
[8] The onus of demonstrating good cause rests with the applicant . In deciding
whether good cause has been shown for non- compliance with stipulated time
frames, the court has to judicially exercise a discretion upon the consideration of all
the relevant facts. These facts include the degree of lateness, the explanation
therefor, prospects of success and the importance of the case, the importance of the
issue(s) that the matter raises; the prejudice to the other party or parties; and the
effect of the delay on the administration of justice
2.
2Melane v Santam Insurance Co. Ltd 1962 (4) SA 531 (A) at 532B – E; Grootboom v National
Prosecuting Authority and another 2013 (5) ZACC 37; (2014) 35 ILJ 121 at para [50]
4
[9] The above factors are equally interrelated but not individually decisive and
must be weighed against each other . Thus a minimal delay and a good explanation
may compensate for weak prospects of success 3. On the other hand, condonation
may be refused where the explanation for the inordinate delay is neither reasonable
nor acceptable, irrespective of good prospects of success
4. Thus, that where the
non-compliance was flagrant and cumulative, and where there wa s no acceptable
explanation for the breaches, condonation may be refused whatever the merits
were
5. The weight to be attached to the other factors relevant for the determination
of good cause count for little in circumstances where the degree of lateness is
excessive and the explanation proffered amounts to no explanation at all
6. Of crucial
importance when considering the relevant factors, is whether in the end, the interests
of justice dictates that condonation be granted or refused
7.
(i) The delay and its extent:
[10] The founding affidavit in support of condonation was deposed to by Mr
Mabitsela, the Provincial Organiser of SAMWU on behalf of the applicant .
Notwithstanding certain averments made in reference to other individuals, no
confirmatory affidavit were filed, let alone by the applicant. Mabitsela averred that the
delay in filing the review application was 22 days which was not significant. The
Municipality on the other hand through the answering affidavit deposed to by its
Chief Financial Officer, Ms Mankga, had contended that the delay was 34 days,
which was inordinate.
3 United Plant Hire (Pty) Ltd v Hills 1976(1) SA 717 (A) at 720 E – G.
4 Collet v Commission for Conciliation, Mediation and Arbitration and others [2014] ZALAC 1; (2014)
35 ILJ 1948 (LAC) (Collet)at para 38
5 Blumenthal and Another v Thomson NO and Another (462/1992) [1993] ZASCA 190 (30 November
1993); 1994 (2) SA 118 (A) at 121I – 122B
6 Moila v Shai N.O and Others (2007) 28 ILJ 1028 (LAC) at para 34.
6 Moila v Shai N.O and Others (2007) 28 ILJ 1028 (LAC) at para 34.
7 See Grootboom v National Prosecuting Authority (Grootboom) [2013] ZACC 37; 2014 (2) SA 68
(CC); 2014 (1) BCLR 65 (CC) at paras 22-3 and 51
5
[11] The applicant was served with the ruling on 23 September 2021 and the dies
for the filing of the review application as he had correctly identified it was on or about
4 November 2021. The delay is effectively four weeks. The Court agrees that the
delay is excessive, albeit not in the extreme.
The explanation for the delay:
[12] Mabitsela averred that the ruling was served on a Mr Maribe who had
represented the applicant at the proceedings at the SALGBC. Upon its receipt,
Maribe had then had drafted a memorandum and presented it together with the
ruling to Mr Aphane at SAMWU’s office on 28 September 2021. This was approved
on 01 October 2021 and after the file was sent to the union’s labour section for
assessment on the prospects of the merits of the matter. Thereafter it was for the
union’s Registry’s section and a briefing panel to consider various quotations from
practitioners prior to an appointment being approved.
[13] Mabitsela averred that it was only on 14 October 2021 that instructions were
issued to counsel to launch the review application. The appointed counsel however
failed to carry out his mandate and was ‘ debriefed’. Ultimately the matter was
handed over to the applicant’s current attorneys of record on 22 November 2021.
The applicant was contacted and c onsultations were held with counsel on 29
November 2021, leading to the filing of the review application on 8 December 2021.
[14] The opposing averments made by Mankga on behalf of the Municipality were
that the applicant had not proffered any explanation for the delay, and that if there
was any, material facts pertaining to the identity of the counsel allegedly briefed and
the union’s own internal processes were not disclosed. In addition, it was averred
that neither the said counsel nor the applicant’s attorneys involved in the matter prior
to its delivery , had attached supporting or confirmatory affidavits pertaining to their
involvement in the matter.
involvement in the matter.
[15] It was only in the replying affidavit that Mabitsela had sought to expand on
the explanation for the delay and by filing supporting affidavits of Mr. Setlatjile, an
attorney with the applicant’s attorneys of record, and that of Adv. Mothupi.
6
[16] It is trite that an explanation for non-compliance when seeking indulgence
from the Court must cover all the aspects related to the delay, including the period of
any delay after becoming aware of the need to apply for condonation, and that the
explanation given must be reasonable
8. In this case, the Court will accept that the
application for condonation was delivered simultaneously with the main review. It
was however correctly pointed out on behalf of the Municipality that the explanation
fell short of being reasonable or satisfactory.
[17] In the first place it is trite that a party stands and falls by its founding affidavit,
and that a case cannot be made out in the replying affidavit
9. The Court in Shephard
v Tuckers Land and Development Corporation (Pty) Ltd 10 held that ordinarily, such
an affidavit raising a new matter ought to be struck out. The Court nonetheless
reaffirmed that the rule was not absolute, and that it was within its discretion to
permit such new matters to remain in the replying affidavit, provided the respondent
is afforded an opportunity to deal wi th those matter in a second set of answering
affidavit. That indulgence was however to be allowed in special or exceptional
circumstances.
[18] In this case, the confirmatory affidavits and other new averments were
merely explained by Mabitsela as an oversight when the founding affidavit was
settled. This explanation makes it even worse for the applicant and the drafters of
the founding affidavit . A defence or claim of an oversight in drafting court papers
hardly qualifies as an exceptional or special circumstance for the purposes of
indulging the new material in the replying affidavit.
[19] Notwithstanding the above, the issue remains whether a satisfactory and
explanation was proffered. That question in my view ought to be answered in the
8 Van Wyk v Unitas Hospital and Another (CCT 12/07) [2007] ZACC 24; 2008 (2) SA 472 (CC); 2008
(4) BCLR 442 (CC) at para 22
(4) BCLR 442 (CC) at para 22
9Mostert and Others v FirstRand Bank t/a RMB Private Bank and Another 2018 (4) SA 443 (SCA)
para 13; My Vote Counts NPC v Speaker of the National Assembly and Others 2016 (1) SA 132 (CC)
at para [177
10 (1) 1978 (1) SA 173 (W) at 177G – 178A
7
negative. At the core of the explanation is that the delay is attributable to the internal
processes of SAMWU . It was submitted that these processes were out of the
applicant’s control and could not be circumvented.
[20] The importance of adherence to statutory time frames clearly trumps over
everything else, inclusive of an organisation’s internal processes . SAMWU, being
familiar with Court processes and statutory requirements, must have been aware of
the need to act with the necessary haste when seeking a review. The rules of Court
and statutory provisions are meant for the convenience of the Court, and not to
accommodate an organisation’s internal cumbersome processes prior to instituting
or defending matters . In this case, nothing was said in the founding affidavit to
demonstrate whether any alacrity was exercised when there was an intention to file
this application upon receipt of the ruling, with clear knowledge of the time frames.
[21] Equally not helpful is an explanation that an appointed counsel failed to
timeously attend to the matter resulting in the applicant’s current attorneys of record
being appointed. Nothing is said about what caused the previous counsel to delay
the matter and what steps were taken against that counsel, other than that he was at
some time ‘debriefed’ and the matter handed over to the current attorneys of record.
It does not further assist the applicant’s case for a mere contention to be made on
behalf of the applicant that ‘in reality these things do occur.’ The applicant and
SAMWU as dominus litis , are obliged to show some seriousness in timeously
prosecuting their matter and ensuring that ‘these things’ do not occur when counsel
is instructed.
[22] Conspicuous with his silence is the applicant, who it appears in the absence
of his confirmatory affidavit, was only contacted around 22 November 2021 to attend
consultations on 29 November 2021. There is however no confirmation from him . In
consultations on 29 November 2021. There is however no confirmation from him . In
Saloojee and another v Minister of Community Development
11, it was held that "there
is a limit beyond which a litigant cannot escape the results of his attorney's lack of
diligence or the insufficiency of the explanation tendered. Effectively, an applicant
cannot simply hand over his/her matter to representative, including his union, and
11 1965 (2) SA 135 (A) at paragraph 141C-E,
8
not bother to enquire about its progress as an interested party 12. In this case, at the
time that the applicant was contacted, the six -weeks period had long passed. It is
unknown as to whether at any time between the issuing of the ruling and 22
November 2021 when he was allegedly contacted for consultations he had done
anything to enquire about progress in his matter.
[23] Against the above observations and conclusions, clearly the explanation
proffered for the delay hardly qualifies as acceptable or satisfactory.
Prospects of success
[24] Even though it has been concluded in this judgment that the explanation for
the delay was not satisfactory or acceptable, it has equally been concluded that the
delay was excessive albeit not in the extreme. In Steenkamp and Others v Edcon
Limited
13, the Constitutional Court reiterated the approach in Grootboom 14 that in the
overall consideration of what is in the interests of justice, the court may grant
condonation where the period of the delay is short and the explanation
unsatisfactory. But that approach in this case must be assessed against the question
whether the applicant’s prospects of success in the review application can be said to
compensate for the lack of a satisfactory explanation.
12 See Huysamen and Another v Absa Bank Limited and Others (Huysamen) (660/2019) [2020]
ZASCA 127 (12 October 2020 at para 14 where it was held;
“The question is whether the applicants’ condonation application should be granted despite their
attorney having been remiss in fulfilling his duty to them. Courts, in general, are ordinarily loath to
penalise a litigant on account of his attorneys’ negligence. But in Reinecke, this Court warned litigants
that the time had come that it should be no excuse. Attorneys are members of the Court. The Court
expects them to know and uphold the Rules of the court in which they practise. A litigant can derive
no benefit from the ineptitude of his attorney. After all the attorney is the litigant’s chosen legal
representative. If one’s legal representative has poorly executed the mandate, one must suffer the
consequences. In any event, the applicants themselves are not without blame. It would be
unreasonable to accept that once a client has given instruction to an attorney, he or she can sit back
and do nothing. The applicants herein, it would seem, hardly enquired from their attorney as to the
progress with the appeal…”
13(CCT29/18) [2019] ZACC 17; 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC); [2019] 11 BLLR
1189 (CC) at para [36]
14 At paras 22-3 and 51
9
[25] In determining prospects of success, and to do justice to this aspect of the
enquiry, I deem it expedient to do so within the context of the merits of the review
application. This is so in that the submissions in regard to the prospects of success
are essentially the same as those pleaded as grounds of review in the main
application. Against this approach, whether the applicant has prospects of success in
the main review application has to be assessed in regards to the material that was
before the Arbitrator when condonation was considered.
[26] To recap, after the applicant was dismissed on 15 March 2021, h e had
referred a dispute to the SALGBC on 7 June 2021. I t is apparent that the applicant
was out of time. It is further common cause that the provisions of section 191(1)(ii) of
the LRA related to ‘upholding of the dismissal’ could not have applied in this case
since no appeal or further hearings were held after the initial dismissal.
[27] It was submitted before the Arbitrator that the delay was about fifty one days
late. It is common cause that the late referral was not accompanied by an application
for condonation. When the matter came before the Arbitrator, he had confirmed that
he lacked jurisdiction. The applicant then filed an application for condonation. That
application
15 was deposed to by Aphane, the SAMWU’s Provincial Secretary and
previously a shop steward. Although it is not clear as to when the affidavit was filed,
the Court will accept from Mankga’s answering affidavit that it was filed on 3
September 2021, some six months since the time periods of the referral had lapsed.
[28] In opposition to the application before the Arbitrator, Mankga, who was the
then Acting Municipal Manager, had similarly deposed to the answering affidavit and
disputed that the application was only 51 days. She averred that the delay between
the date of the dismissal and the initial referral without condonation was 54 days.
the date of the dismissal and the initial referral without condonation was 54 days.
However, when it was taken into account that that the application for condonation
was only delivered on 3 September 2021, the degree of lateness was 142 days,
which was excessive and weighed against condonation being granted.
15 Page 5 – 8 of the Record
10
[29] In explaining the delay before the Arbitrator , Aphane contended that the
applicant had after his dismissal, exercised his right of appeal internally on 23 March
2021 within seven days in accordance with the SALGBC Disciplinary Code
Collective Agreement. It is contended that receipt of his appeal was acknowledged
by the Municipality on the same date and the latter had appointed an appeals panel
on 28 April 2021 and scheduled a hearing for 30 April to 3 May 2021. It was
submitted that the applicant had also r eceived his salary for April 2021. He had
however waited for a month without the appeal hearing being convened until he
decided to refer the dispute to the SALGBC.
[30] Mankga disputed that the applicant had lodged an appeal with the Municipal
Manager, and that despite his arrangements with the Labour Relations Officer, his
appeal never reached the office of the Municipal Manager, hence the appeal hearing
was never convened. Mankga further averred that even if the applicant had lodged
an appeal on 23 March 2021, under clause 17.4 of the SALGBC Disciplinary
Procedure Code, the appeal ought to have taken place within 10 days of its lodging.
The 10 days therefore expired on 7 April 2021, and it could not be contended that
the applicant was still waiting for an appeal thereafter as the time period had lapsed.
[31] Mankga averred that the applicant failed to explain each period of the delay
between 16 April and 7 June 2021, had in addition, failed to furnish an explanation
for the delay between 16 April 2021 and 3 September 2021 when he filed his
application for condonation.
[32] In regards to the applicant’s prospects of success, it was simply contended
that he ‘enjoys excellent prospects of success and that his dismissal will hopefully be
declared unfair’.
[33] Mankga averred that the applicant had not set out any facts which
demonstrated that he had reasonable prospects of success. She pointed out that the
demonstrated that he had reasonable prospects of success. She pointed out that the
applicant had not set out the reasons and charges of misconduct against him that led
to his dismissal. Mankga averred that the applicant was charged with several acts of
gross misconduct related to dishonesty for inter alia , failure to declare business
interests in the financial disclosure form, and contravention of the Municipality’s
11
Code of Conduct for staff. In this regard, it was alleged that the applicant as an
employee in the Municipality’s fleet department had purchased a vehicle which
belonged to the Municipality which was written off after an accident. The value of the
vehicle, which was just three months old with a milage of less than 200km when it
was involved in an accident , had been assessed at over R400 000.00 by the
insurers. The applicant had however purchased it for R75.000.00.
[34] The applicant in his replying affidavit before the Arbitrator had as he had
done in the condonation for the late filing of the review application, sought to expand
on the prospects of success and other factors scantly dealt with in the founding
affidavit. I will revert to these averments in the course of this judgment.
[35] The Arbitrator against the above submissions had concluded that a delay of
51 days, even on the applicant’s own calculations was inordinate. He concluded that
the reasons proffered by the applicant for the delay were not at all convincing and
there was no justification for it. In this regard, he concluded that even if the applicant
had lodged an appeal, he took no steps during the 51 days to enquire why it was not
convened on time, and he demonstrated no eagerness in remedying any
infringement of his rights or the unfair dismissal.
[36] The Arbitrator in considering the prospects of success concluded that the
applicant failed to address this pivotal question in his affidavit, and that a mere
contention that one had prospects of success w ithout laying a basis for that
contention was insufficient . The Arbitrator found that the applicant failed to address
how his dismissal was unfair and did not dispute the serious charges of misconduct
involving dishonesty preferred against him. Those charges according to the
Arbitrator, pertained to dishonesty and were ordinarily regarded as fair grounds for a
dismissal. It was held that in the absence of a satisfactory explanation for the delay
dismissal. It was held that in the absence of a satisfactory explanation for the delay
and the failure to substantiate on prospects of success, the applicant had not shown
good cause.
[37] In seeking a review of the Arbitrator’s ruling, various grounds were raised on
behalf of the applicant . These included inter alia that the Arbitrator committed gross
misconduct and gross irregularities and arrived at an unreasonable conclusion. It
12
was further contended that the Arbitrator adopted an approach unjustified on the
facts and inconsistent with his statutory duties; did not exercise powers conferred on
him by the LRA; wrongly and unjustifiably made certain factual findings and/or
assumptions against the applicant and displayed a one- sided analysis of the
evidence and argument. In the main, i t was submitted that the applicant’s prospects
of success and other factors were sufficiently addressed in his replying affidavit ,
which the Arbitrator ignored and thus made the ruling unreasonable.
[38] It is trite that at the core of any application for condonation is whether good
cause was shown. Of equal importance is that granting or refusing condonation
involves an exercise of a discretion whether by the Court or arbitrators. In National
Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and
Others
16 it was held that a court is not entitled to interfere with the decision of a lower
tribunal in the exercise of its discretion, merely on the basis that it would have arrived
at a different conclusion on the facts that served before the tribunal. The court is only
entitled to interfere in circumstances where the tribunal did not exercise its discretion
judicially, or where it was influenced by the wrong principles, or had committed a
misdirection on the facts, or arrived at a decision which could not have been
reasonably arrived at by a tribunal properly directing itself to all the relevant facts and
principles
17.
16 (CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 at para 11.
17 See also Bosch v Seynhaeve NO (159/2023) [2024] ZALCCT 25 (27 June 2024) where it was held;
“[19] In an appeal against a condonation ruling by the Labour Court, the Labour Appeal Court in
Colett v Commission for Conciliation, Mediation & Arbitration & others reaffirmed the test adopted by
the Constitutional Court in Mabaso v Law Society, Northern Provinces & another to decide such an
appeal:
appeal:
“[29] A court of appeal will not lightly interfere with the exercise of a judicial discretion by a lower
court. An appellant who challenges the exercise of a judicial discretion will have to show that such
discretion was not exercised judicially. More specifically the appellant will have to show that the court
a quo either-
29.1. failed to bring an unbiased judgment to bear on the matter;
29.2. did not act for substantial reasons;
29.3. exercised its discretion capriciously or arbitrarily;
29.4. exercised its discretion upon wrong principle;
13
[39] In the light of the above principles, and to the extent that the Arbitrator had
accepted that the delay was at least 51 days and thus inordinate, there is no basis
for any interference with that observation and conclusion. Worst still however was
that at the time that the referral was lodged, the applicant or SAMWU must have
been aware that the time periods had lapsed, and yet no condonation was sought.
Condonation was only sought after the matter initially came before the Arbitrator, and
in September 2021, some almost six months after the time periods had lapsed.
Clearly the delay was inordinate as properly found by the Arbitrator. This meant that
for the application to succeed, the applicant had to demonstrate that notwithstanding
the inordinate delay, he had a reasonable and acceptable explanation for the delay
[40] It is apparent from a long line of authorities that where an employee invokes
internal appeal procedures in challenging a dismissal, the date of the appeal
outcome, and not the date of the dismissal , shall be determinative in calculating the
timeframes contemplated in section 191(1)( b)(i) of the LRA.
18 It was held in Go us19
that the fact that an employee had waited for the outcome of the internal appeal
before referring a dispute to the CCMA was far from an irrelevant consideration.
[41] In this case, it is common cause there was never an appeal hearing. There is
a dispute as to whether the applicant had lodged an appeal or not. Aligned to that is
the contention on behalf of the applicant that such an appeal was arranged but not
convened.
29.5. committed a misdirection of such a serious nature and degree as to justify a conclusion that
it acted improperly or unreasonably...”
[20] It follows that a review of an arbitrator’s condonation ruling must not be assessed on a less
stringent standard. In reviewing the ruling of an arbitrator exercising a flexible discretion in the
application of the multi -factor test applicable to condonation rulings, a court needs to be mindful that
the review is confined to the ambit of the abovementioned grounds for interfering with the exercise of
a wide discretion.”
18 See Fidelity Guards Holdings (Pty) Ltd v Epstein & others (2000) 21 ILJ 2009 (LC) at para 18; see
also Information Trust Corporation v Gous & others (Gous) (JA49/2002) [2003] ZALAC 25; (2005) 26
ILJ 2351 (LAC); [2005] JOL 16037 (LAC) at para 8.
19 At para 10
14
[42] In this case, the applicant having been dismissed on 15 March 2021, he
alleged that an appeal was lodged timeously on 23 March 2021, and that despite it
being arranged for 30 April 2021, such an appeal was never convened. Any appeal
under Clause 17.4 ought to have been convened within 10 days of it being lodged. It
was averred that the applicant had waited for a month after the appeal was not
convened, until he referred the dispute to the SALGBC. It was further contended that
he had trusted that the appeal would be convened, more specifically since he was
paid his April monthly salary despite his dismissal on 15 March 2021.
[43] Even if the Court were to accept that indeed an appeal was lodged, a
difficulty faced by the applicant is that nothing is said about what he had done at
least between 30 April 2021 when the appeal did not convene as allegedly arranged,
and 7 June 2021 when the matter was referred to the SALGBC. Effectively, a period
of over thirty days of inactivity is unexplained. Without even being bogged down by
whether an appeal was lodged or not, in the absence of that specific period being
unexplained, the Arbitrator’s conclusions that the applicant failed to engage the
Municipality to establish the reasons why an appeal was not held and had simply
folded his arms, cannot in my view be faulted. Clearly the explanation did not cover
the entire period of the delay, an omission which is fatal.
[44] To the extent that the inordinate delay was not explained or at most, any
explanation in that regard was unconvincing and unacceptable, the Arbitrator in line
with Grootboom and Steenkamp, had regard to the applicant’s prospects of success
despite the contrary submissions made on behalf of the applicant.
[45] In Thompson v National Health Laboratory Services
20, it was reiterated that
the requirement in demonstrating prospects of success is that an applicant must set
forth briefly and succinctly, such essential details which shall enable the court to
forth briefly and succinctly, such essential details which shall enable the court to
properly assess those prospects. This means that the prospects of success need not
be discussed in great detail as this is a task reserved for evidence during the
20 [2009] JOL 24319 (LAC) at para 22; See also Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A)
at 131D – E.
15
arbitration proceedings.21 In assessing the prospects of success , the onus is on the
applicant to set out reasonable prospects of success.
[46] In the founding affidavit before the Arbitrator, it was simply averred that he
enjoyed excellent prospects of success. Mankga on behalf of the Municipality and
the Arbitrator, had correctly pointed out that the contention about prospects of
success on the merits was scant and without any attempt at substantiation.
[47] From the founding affidavit, it is difficult to appreciate how it could have been
expected of the Arbitrator to conclude that substantial averments were made
regarding prospects of success. It was submitted that the applicant had evinced
good prospects of success in that he had denied the charges and pleaded not guilty,
and that the Arbitrator nonetheless failed or refused to take note of those averments
as set out in his replying affidavit in the application for condonation.
[48] It is disingenuous for any contention to made that there was anything in the
founding affidavit related to the applicant having denied the charges or having
pleaded not guilty to those charges. It was only after the scant nature of the
averments was pointed out in the answering affidavit that an attempt was made to
expand on the prospects of success. It was submitted on behalf of the applicant in
reference to Bosch v Seynhaeve NO
22 that a failure by the Arbitrator to consider the
averments in the replying affidavit made his ruling unreasonable.
[49] The facts in Bosch are clearly distinguishable from those in casu . The issue
in Bosch concerned the unwillingness of the Arbitrator to consider the prospects of
success expanded in the applicant’s extensive closing arguments . Those closing
arguments were submitted to the chairperson of the disciplinary enquiry concerning
the merits and sanction, and the applicant in that matter had attached those written
arguments to his application for condonation. Clearly the Arbitrator’s unwillingness to
arguments to his application for condonation. Clearly the Arbitrator’s unwillingness to
consider the closing heads of argument which formed part of the record before him
in that case was unreasonable.
21 See PPWAWU & others v AF Dreyer & Co (Pty) Ltd [1997] 9 BLLR 1141 (LAC) at 1144J.
22(159/2023) [2024] ZALCCT 25 (27 June 2024)
16
[50] In this case however, any expansion on the prospects of success was
attempted in the replying affidavit without adding anything of value. Other than the
principles and conclusions set out elsewhere in this judgment in regards to the futility
of making out a case in the replying affidavit, the applicant had not attached anything
from the internal disciplinary hearing to back up his claims in the replying affidavit in
regards to prospects of success . It follows that the Arbitrator could only make an
assessment of the prospects of success and exercise his discretion in relation to
what was before him, and not based on mere unsubstantiated assertions and
conclusions without any basis being laid in that regard. All that the applicant did in
the replying affidavit was to confirm that he was found guilty on three allegations of
misconduct. All he could muster even in the face of allegations made in the
answering affidavit, was to aver that all the ‘charges lacks substantive merit and will
necessarily not see the light of day in Arbitration…’ . Again, nothing can be read into
those submissions from the replying affidavit.
[51] In the end, it is apparent that contrary to what was stated in Thompson v
National Health Laboratory Services
23, the applicant failed to set forth briefly and
succinctly, such essential details which would have enable the Arbitrator to properly
assess what his prospects of success were . He thus failed to discharge the onus
placed on him to set out what his reasonable prospects of success were, even when
regard is had to the replying affidavit. Against these conclusions, I fail to appreciate
how the Arbitrator would have been expected to exercise his discretion in favour of
granting condonation.
[52] It was submitted on behalf of the applicant that he would suffer prejudice in
that he would be unable to place his version before the, and further that the prejudice
he would suffer far outweighs that to be suffered by Municipality. It is trite that an
he would suffer far outweighs that to be suffered by Municipality. It is trite that an
exercise of a discretion by this Court equally involves an assessment of the parties’
rights and what is fair to both.
23 supra
17
[53] Both applications before the Court demonstrates a complete failure by the
applicant and his Union in adhering to statutory time frames when referring disputes
to either the Bargaining Council or this Court. Clearly the Municipality will be
prejudiced in circumstances where other than the cumulative failures to adhere to
time frames, it would then be compelled to have to defend a matter where its
prospects of success are non-existent.
Summary:
[54] The applicant failed to provide a satisfactory explanation for a not
insignificant delay in lodging his review application. Any explanation for the delay has
been found to be unsatisfactory and unreasonable and t he applicant prospects of
success in the review are poor . He has not disclosed grounds justifying this Court’s
interference with the Arbitrator’s condonation ruling. That ruling shows that in the
light of the material before him, the Arbitrator applied the applicable principles in a
reasonable, correct, and sound manner, and in the end exercised his discretion
judicially in dismissing the Applicant’s condonation application. T his Court would be
hard-pressed to find a basis for any interference with the ruling as the decision
reached by the Arbitrator is one which could reasonably have been reached by
another Arbitrator properly exercising her/his discretion on the same facts.
Considering the relevant factors in their totality, and the conclusions reached in
respect of both applications, the interests of justice and fairness are best served by
refusing the granting of condonation in the review application.
[55] I have further had regard to whether any costs order should be made as
sought by the Municipality. Against the requirements of law and fairness as
contemplated in section 162 of the LRA, I am of the view that any such costs order is
not warranted and each party must be burdened with its own costs
[56] Accordingly, the following order is made:
Order:
[56] Accordingly, the following order is made:
Order:
1. The applicant’s application for condonation for the late filing of the
review application is dismissed
18
2. Each party is to pay its own costs.
Edwin Tlhotlhalemaje
Judge of the Labour Court of South Africa
APPEARANCES:
For the Applicant: Adv. N Gaffor, instructed by AM Carrim Attorneys INC.
For the Third Respondent: Adv. E Nwedo, instructed by Lebea Attorneys.